Susan Estrich: The best government money can buy

April 5, 2014 6:49:12 PM

Susan Estrich -

The Supreme Court has done it again. By a 5-4 vote, with the court's five Republican appointees on one side and the four Democratic appointees on the other, the court struck down limits on total contributions to federal campaigns that have been enforced and were specifically upheld in 1976. What the 1976 court saw in Buckley v. Valeo as a "quite modest restraint upon protected political activity" that serves "to prevent evasion" of the limits on contributions to campaigns, the 2014 court has now held violates the fundamental protection of political speech enshrined in the First Amendment.

The arms race for money is not completely out of control. Sure, an individual still can only give $5,200 to an individual candidate ($2,600 for the primary, and $2,600 for the general) and is limited to $32,500 to national party committees, $10,000 to state and local committees, and $5,000 to other committees. But whereas the old law limited contributions to federal candidates and committees to $74,600 every two years, now there are no total limits at all.

For most of us, of course, these limits are meaningless. How many people can afford $74,600 in political contributions? We are in the world of the 1 percent already. But now those 1 percenters can give millions or tens of millions. Already maxed out on one committee? Believe me, someone will create another. There is no limit to the avenues to contribute and no law against it, thanks to the Supreme Court.

Does it matter? Of course it does. Sure, having more money is no guarantee of victory. But between having more and having less, every candidate alive would rather have more. And they are grateful, most grateful, to have more, however it comes in -- including from other candidates and their funds, committees, the party, supposedly "independent" groups and individuals. Very grateful. You don't get a picture in a silver frame when you give this kind of money. You get access and a hearing and maybe a feather on the scale -- not something anyone can prove, but enough for it to be a wise business decision and not just an expression of constitutionally protected political beliefs.

And while it is certainly true that both political parties play this game, it is not true that everyone does. As former Sen. Bob Dole famously observed decades ago, every business interest may have a political committee, but poor children don't. There are no million-dollar donations coming in from single mothers struggling to make ends meet, from homeless families seeking shelter, from the 99 percent of Americans who don't even earn enough to make this new decision of any immediate significance to them.

As for the argument that disclosure solves all problems, reality is to the contrary. Oh, once in a while we hear a story about a clumsy contribution from someone who is seeking federal funds at the very same time. Sophisticated donors don't make that mistake. They've figured out ways to avoid disclosure altogether through supposed "grassroots" committees that are anything but.

Moreover, disclosure is a one-day story at best: an enterprising reporter digging through FEC reports trying to match names and companies and issues. But very few people are around for or follow up on the calls and meetings that happen months later. Moreover, the very goal of many big donors is nothing: forestall legislation to assure that nothing is done when something should be. How do you follow that?

Democracy should be sacrosanct. It should not be for sale. The venerable principle of "one person, one vote" is essentially meaningless when a tiny percent of all Americans, by writing checks and forming supposedly independent and grassroots committees, can and do wield undue influence on the process and its elected beneficiaries.

I certainly support the Founders' vision of an independent judiciary: appointed, not elected, and serving for life. But on days like today, I can't help but wonder whether the five-man majority might see things a little bit differently if they had to raise money -- and be beholden to moneyed interests -- in order to win and keep their jobs.